EUROPEAN COURT OF HUMAN RIGHTS
F - 67075 Strasbourg-Cedex
From: the Applicants’ Attorney-in Fact
The Applicants have examined the Further Observations of the Government of the Russian Federation to the Memorandum, submitted to the Court in October 2015.
The abovementioned document, which contains a lot of information and even more examples, in the Applicants’ opinion in fact does not provide any further information or give answers to the Court’s questions, which were not covered in Memorandum as of October 14, 2014.
For the reason above the Applicants consider it acceptable to point out a number of key issues characterizing the basic position of the Russian Federation in respect of this case, to draw the Court’s specific attention thereto.
(à) Exhaustion of domestic remedies.
1. The Government points out that the Applicants in Application ¹75947/11, acting as candidates at December 2011 election, failed to exhaust domestic remedies available to them, as they did not personally apply to courts to protect their violated rights, the respective complaints having been filed by the regional branch of Spravedlivaya Rossiya political party (§24 of the Further Observations of the Russian Federation on the Application).
2. The explanations in this respect were comprehensively provided in the Application, yet it shall be added that the subject matter and the grounds of the complaint submitted by the regional branch of the political party concerned exactly the violation of the passive electoral rights of the candidates of the respective party, i.e. the Applicants. Thus, the formal indication to the absence in the letterhead of the name of the specific applicant does not change the fact that in essence the Russian courts did not provide the protection of rights to the abovementioned group of the Applicants. The case initiated by the regional branch of the political party contains all circumstances and arguments the Applicants could provide to the court.
3. Considering the same nature of the principles the courts were guided by in rejecting the claims of the regional branch of Spravedlivaya Rossiya political party, the Applicants had more than enough grounds to conclude about the inefficiency of the given remedy.
4. In §§27-29, as well as §63 and §386 of the Further Observations of the Government of the Russian Federation to the Memorandum, it is stated that the Applicants were wrong in choosing St.Petersburg City Court as a court competent to consider violations made by St.Petersburg Electoral Commission, as the abovementioned court is not competent to consider such cases; yet St.Petersburg City Court considers complaints in respect of decisions made by the abovementioned Commission.
5. Notwithstanding the fact that there is no formal ban on appeal in the legislation, the actual absence of the procedure allowed the courts not to consider the case on the merits on the formal grounds. In the situation when the effective remedy is not provided on the legislative level, the statement that the Applicants failed to exhaust domestic remedies seems at least incorrect.
6. Besides, the Government evidently exceeds the scope of its powers in considering in §34 of the Further Observations the allegedly existing deficiencies of the claim submitted by the Applicants to St.Petersburg City Court, which the court did not mention in considering the claim.
7. The Applicants draw the Court’s attention to the fact that to confirm their position on existence of effective remedies the Government cited a huge amount of court rulings and provided statistics of case consideration by different courts (§84 of the Further Observations). It seems that by doing this the Government wanted to neutralize the negative impact produced by review of the court decisions in respect of the Applicants’ complaints.
8. This approach seems at least strange to the Applicants. The Applicants spoke about violation of their rights under the Convention, and confirmed this by court rulings, responses obtained from the law enforcement agencies and electoral commissions on various levels. The Applicants find it unclear how complaints filed on different grounds in respect of different people can evidence provision of effective remedies by the state.
9. The Applicants consider that in providing this amount of irrelevant material the Government simply abuses its right to provide evidence of its position to the Court.
10. The Applicants would also like to draw the Court’s attention to the position of the Russian Federation in respect of such remedy as filing a complaint about initiation of a criminal case (see §§313,314,322 and 323 of the Further Observations).
11. In the Applicants’ opinion the Government in those paragraphs gave all grounds to conclude that such remedy is absolutely ineffective, as a person who files a complaint about initiation of a criminal case cannot obtain assessment of such claim as a legal fact which gives rise to consequences stipulated by the Russian Code of Civil Procedure, for there is no guarantee such complaint will be accepted under the criminal law. In case an investigator is not willing to consider a complaint, he/she simply recognizes it an application on alleged violations of the law and transfers it to other authorities. Such investigator may or may not have certain reasons, and the citizen cannot in any way influence it.
12. The Applicants suppose that by its interpretation of the current criminal procedure legislation the Government simply stripped this anyway not very effective remedy of any sense, as according to the Government, a person applying to investigative bodies with a criminal complaint is simply not able to initiate the procedure stipulated in the law of criminal procedure.
(b) Compatibility of the Applicants’ complaints alleging ineffective examination of their cases by the Russian courts ratione materiae
13. In §152 of the Further Observations the Government states that the Court has by far overstepped the competence of the European Court having posed to the parties question no.4 on compatibility of the procedure of examination of the Applicants’ grievances by the national courts with the guarantee of “effective examination” and on examination by the courts of all relevant and essential information sources at their disposal of possible to have been obtained.
14. In the Applicants’ opinion, in this case it is the Government of the Russian Federation which has overstepped its competence in arbitrarily interpreting the provisions of the Convention, while such interpretation is exclusively in the Court’s competence.
(ñ) The Government’s explanation in respect of the facts of the case
15. In §222 of the Further Observations the Government finally gives explanations in respect of the grounds of the recount, which was previously called “complaints and applications in respect of actions of DECs submitted to the territorial commission”.
16. Under the current position stated by the Government, all complaints and applications were oral.
17. In connection therewith the Second Applicant, for example, can truly report that not only common voters were not allowed in the premises of TEC no.21, but also members of DECs with decisive voting right, the Second Applicant among them. The way the unidentified persons managed to voice their discontent to the commission under such circumstances seems inexplicable.
18. The Applicants would like to draw the Court’s attention to the fact that oral nature of complaints is a confirmation of lack of any evidence of grounds for the recount. In other words, it is absolutely impossible to check the rightfulness of the recount.
19. In §223 of the Further Observations the Government states that notification of those eligible to be present at the recount was made in the oral form as well. The Applicants ask the Court to evaluate this circumstance as well, as in respect of a number of questions the Government in fact suggests the Court should believe its bare word. To believe its bare word that there were oral complaints which resulted in the recount to favor Edinaya Rossiya political party, that everyone eligible to be present at the recount were notified orally yet failed to appear.
20. As regards the Applicants who acted as members of DECs with decisive voting right, it can be truly stated that none of them were notified even orally. Moreover, they found out about the recounts much later, after they applied to the Court.
21. In §§264 and 265 of the Further Observations the Government points to the grounds the territorial commissions guided themselves in deciding on which commission (territorial or district) was to conduct the recount. Among such grounds were:
- how rapidly a district commission could gather;
- how serious was the mistake the DEC had made.
22. As it was stated earlier, the Applicants were not notified of the recount, the extent to which they were ready to conduct the recount was not evaluated, yet after the protocols were delivered from DECs to territorial commissions the Applicants stayed in the premises of the territorial commissions for quite a long time, trying to control the process of entering the information to the Vybory system, in which they failed as they were denied the access to the premises where the entry of the information was carried out.
23. The Third Applicant submitted a recording of the phone conversation with the chairman of the DEC where he acted as a member of the DEC with decisive voting right. The recording contains the conversation from which it is to be concluded that the data published online on the official site in respect of the Third Applicant’s district had appeared before the chairman of the DEC delivered the voting results protocol to the territorial commission.
24. As for the Further Observations submitted by the Government in the English language, it shall be noted that §§12 through 21, which contain the reasoning of the Government concerning the intervention with the applicants’ right to fair election, were deleted from the English version (pp. 18-19 of the Russian version of the Observations).
25. In conclusion the Applicants would like to point out that they have been denied the access to the case materials for several times already, yet the Court proceedings are open and denial of access to the case file is impossible in concept under the Court’s rules.
Applicants’ Attorney-in Fact
07 December 2015